Court tosses Gloversville slide injury lawsuit

PHOTOGRAPHER: Jim McGuire

In a split decision with a dissenting opinion, an appeals court has reversed a state Supreme Court ruling that allowed a 2001 accident case against the Gloversville Enlarged School District to proceed to trial.

The Appellate Division of the New York State Supreme Court, in a 3-2 ruling issued Thursday, dismissed a lawsuit filed by Rachael J. Butler and her mother, Mary Butler.

The ruling reversed a May 2007 decision by Supreme Court Judge Richard T. Aulisi, who denied the school district’s request to dismiss the suit and ordered the case to proceed to trial. Aulisi said there were questions of fact regarding the accident at Darling Field that could only be decided by a jury.

Rachael Butler was 10 years old in June 2001 when she fell 7 feet from the top of a playground slide and broke her femur and clavicle.

The district’s lawyer, Christopher K. Mills of The Mills Law Firm of Clifton Park, did not return a phone call.

The Butlers and their lawyer, Alan S. Zwiebel of the Kingston firm of Zwiebel & Fairbanks, argued the school district was negligent in allowing a hazardous condition on its playground. A consultant hired by the plaintiffs concluded the slide area was grass and dirt and lacked a cushioned area used at other district playgrounds.

Zwiebel said the split decision by the appellate division provides for an automatic appeal to the Court of Appeals. Zwiebel called the decision “erroneous,” and speculated the majority was confused by the information provided in affidavit form by the school district’s expert. Zwiebel said a trial would allow him to challenge the findings of that expert, who offered an analysis concluding that a cushioning surface would prevent a skull injury, but not broken bones.

The court majority, citing the school district’s contention that the playground was in compliance with safety standards in effect at construction, cited case law: “A party has no legal duty to upgrade or reconstruct its property simply because design specifications have been implemented or changed since the time of the original construction.”

The court also cited the school district consultant, noting: “In his opinion, a fall from the top of the slide would have resulted in broken bones regardless of whether the child fell onto sod, pea stone or another surface recommended by the guidelines.”

As a result, the court’s three-member majority said the case should be dismissed because there is no evidence to show the school district’s “actions or inaction … caused the child’s injuries.”

The two-judge minority wrote in their dissenting opinion that responsibility for the accident cannot be determined “as a matter of law based on this record. Proximate cause remains for the factfinder [a jury] ‘where varying inferences are possible,’ ” the dissenting judges said.

Citing the plaintiff’s expert’s finding that the injuries might not have occurred had there been a cushioning surface under the slide, the dissenting judges said: “The proof … is sufficiently conflicting to present viable questions for trial.”